Politics

The government’s contempt for the rule of law

Johnson’s administration had a dubious legal record before the pandemic. Now it is appalling

June 12, 2020
Cummings leaves his home at the height of the Durham/Barnard Castle Row. Photo:  Kirsty O'Connor/PA Wire/PA Images
Cummings leaves his home at the height of the Durham/Barnard Castle Row. Photo: Kirsty O'Connor/PA Wire/PA Images

Boris Johnson’s government had a controversial relationship with the rule of law from the start. The prime minister unlawfully prorogued parliament. When MPs later passed the Benn Act instructing him to seek a Brexit extension, he spent weeks briefing that he would do no such thing, only relenting at the last minute. Supporters said he was within his rights; critics said confidence in the rule of law was being undermined.

For sceptics of the current administration, both episodes offended fundamental ideas about how a government should behave.

Yet if those events provoked anguish, there was more to come. In the months since the virus has struck, the government, it is claimed, has stretched its relationship with the law even further beyond acceptable bounds. Several of the UK’s leading legal figures I have spoken to contend that he has violated democratic norms on various fronts.

Certainly, these are exceptional circumstances. Few would expect the government to lead the UK through an unprecedented pandemic without making mistakes, and certainly not in the early stages of the disease. But as time passes and the controversies don’t go away, there becomes less reason to give the government the benefit of the doubt. So what errors have been made and how serious are the implications?

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After Johnson’s top adviser Dominic Cummings drove to Durham and then Barnard Castle with coronavirus symptoms, he convened a press conference to explain his actions at which he claimed they fell within the rules.

As we know, this was highly disputable. Regulation 6 of the measures then in force stated that “during the emergency period, no person may leave the place where they are living without reasonable excuse.” According to Stanley Burnton, a former Court of Appeal judge, it is doubtful this granted “permission to drive 30 miles to a beauty spot on your wife’s birthday with her and your son in order to test your eyesight.” In the aftermath, legal commentators spent days poring over the regulations, working out precisely how Cummings had violated them and making the argument on public forums. (Helpful explainers on the details of the case can be found here).

But even more important than the legal detail was the impression given. For not only did Cummings break the law, but he did so in a high-profile manner, on an issue which had demanded unwavering rule-following from members of the public. Polling after the event indicated that the same public was incandescent. The suspicion was that it was one law for the government’s favoured adviser, another for everyone else.

As Helen Mountfield, one of our top QCs and a deputy high court judge, told me, “The law is the same for everyone. If it is not the same for everyone, respect for the rule of law ends.” Faith in this fundamental principle was in danger of being compromised.

In the following days, things got still worse when Attorney General Suella Braverman intervened, tweeting “Protecting one’s family is what any good parent does. The @10DowningStreet statement clarifies the situation and it is wholly inappropriate to politicise it.”

The AG is a position occupying a complicated place in the UK’s unwritten constitution, which sometimes forces the officeholder into a difficult balancing act between objective adviser to the government and party politician. Braverman insisted she did nothing wrong. But her opponents soon accused her of crossing that line and taking part in “orchestrated political” behaviour, undermining the independence of the office and, by extension, the rule of law itself.

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It is surely true that government advisers must follow the law, and law officers of the crown must be independent on issues of legal importance. But just as important is that ministers do not take legal powers they are not entitled to. Regrettably, this has been another point of contention.

In the early stages of the pandemic, there was a war of legal bloggers, with respected voices on either side debating whether the coronavirus legislation was lawful or not. The issue tended to relate to the vires, or scope, of the Public Health (Control of Disease) Act 1984, under which government measures were introduced. One problem concerned the government’s use of the “emergency procedure” (in section 45R of the act), which means all that is required for lockdown rules to be changed is a ministerial signature, rather than a prior full vote of parliament.

Although use of the procedure was arguably acceptable in the early stages of lockdown, its use now is a different story. It is difficult to see how a relaxation, rather than a tightening, of the rules could be “urgent,” especially when changes have been in prospect for weeks before implementation.

To be sure, there are some safeguards: changes lapse if not approved within 28 sitting days. Even so, according to George Peretz QC, the basis for using the emergency procedure now is “legally dubious.” And, as barrister Adam Wagner has argued for Prospect, it also makes for bad law-making because the opportunity for meaningful scrutiny and improvement is lost.

As Harriet Harman, the former solicitor general and now chair of the Human Rights committee, told me in the context of a related discussion, parliament can legislate quickly when it needs to, and that includes on issues related to the pandemic. There was surely no justification for the urgent procedure; but there was also arguably no need for it.

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Lastly, there should be clarity about what the law is for those following and administering it. Neither condition has been reliably met in recent months.

Indeed, throughout, ministers have traded on ambiguity around the restrictions, making claims in guidance or public statements that are not in the regulations themselves. This is a recipe for disaster, and the predictable result has been confusion among the public about what they are allowed to do but also among police forces, who, as former Supreme Court justice Simon Brown told me, have been implementing the guidance, which is not legally enforceable, as well as the law, which clearly is. That leads to “real danger.” Fortunately this problem seems to be subsiding.

There are further criticisms made of the government’s approach and as the rules change so do the complaints. Some have bemoaned what they see as unexplained discrepancies between law in the different parts of the UK, creating further confusion.

So what is the impact of all this? In the immediate term, the crisis is rightly seen through the lens of public health. It will soon be seen through the lens of the economy. But adherence to legal and constitutional norms is not something to be cast aside when politicians feel like it. It is fundamental to the workings of a democratic society.

We have a way yet to run in this saga, with further easing and then possible tightening of the lockdown in the wake of a second wave. The sooner the government reaffirms its commitment to the rule of law, the better. Further erosion could do lasting damage to trust in politicians. And as David Hope, former deputy president of the Supreme Court, told me, “Once that relationship breaks down, as it is at risk of doing now, we are in real trouble.”